Coombs v. Harford

• Decision Date: 27 December 1904
• Citation: 59 A. 529,99 Me. 426
• Parties: COOMBS et al. v. HARFORD et al.
• Court: Maine Supreme Court

59 A. 529

99 Me. 426

COOMBS et al.

v. HARFORD et al.

Supreme Judicial Court of Maine.

Dec. 27, 1904.

(Official.)

Report from Supreme Judicial Court, Cumberland County, at Law.

Action by Frank F. Coombs and others against James H. Harford and others on a bond given by defendants to Elizabeth City Lodge, No. 114, Independent Order of Odd Fellows. Case reported. Judgment for defendants.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

W. R. Anthoine and Thomas L. Talbot, for plaintiffs.

F. H. Harford, E. E. Heckbert, and A. F. Moulton, for defendants.

SAVAGE, J. Action of debt on bond. In December, 1888, the defendant James H. Harford was elected one of the three trustees of Elizabeth City Lodge of the Independent Order of Odd Fellows for one year. The by-laws of the lodge at that time provided that the trustees should be elected annually, and should have charge of all the stocks, securities, investments, properties, and permanent funds of the lodge, and required that they should, previous to entering upon the duties of their office, give a joint or several bond to the lodge, with three sureties, to be approved by the lodge, for the faithful performance of their duties. As we construe this requirement, the trustees might unite in a joint bond, or each might give a several bond. Such was the construction placed upon the by-law by the lodge itself, and it seems clearly permissible. January 1, 1889, James H. Harford, with the other two defendants as sureties, executed the bond in suit, which was his several bond, and which was security for his personal default. The evidence satisfies us that the bond was delivered to and accepted by the lodge, but there is no evidence of a formal approval of the sureties by the lodge. The bond was conditioned for the faithful performance by the principal of the duties of his office "during his continuance in and so long as he shall hold said office by election, re-election, or otherwise," and for his delivery to his successor in office, or to any person appointed by the lodge to receive them, of all funds, securities, and other property in his possession or under his control, "at the expiration of his said office, or whenever he may cease to hold the same." The plaintiff claims that Harford continued in office, by re-election or otherwise, until the year 1901, but there is no evidence that he gave any other bond. During the year 1901 he embezzled $578 of the funds of the lodge under his control. Subsequently, by authority of a vote of the lodge, all the right, title, and interest of the lodge in the bond was assigned to the plaintiffs, who were at that time, respectively, a member of the finance committee, one of the trustees, and the treasurer of the lodge. The assignment was without consideration, and was made solely for the purpose of enabling the assignees to bring suit on the bond in their own names for the benefit of the lodge. The reason for this lay in the fact that the lodge was an unincorporated association, of which the defendant Harford and at least one of the sureties were members, and no action at law on the bond in the names of the members would lie, because these defendants would be both plaintiffs and defendants.

1. Among the minor defenses set up are these. The defendants object that the bond had only two sureties, instead of three, as required by the by-laws, and that there is no evidence of its formal approval by the lodge. We do not think either of these objections can avail. It does not appear that either of the sureties signed the bond on any condition, or with any understanding that another surety was to sign. The bond was for the protection of the lodge. It might have required a bond with three sureties; but the fact that it accepted the bond with two sureties shows that it was satisfied with it, and if the lodge was satisfied it does not lie in the mouths of the sureties to complain. So, the acceptance of the bond was a sufficient approval of it.

2. Again, the defendants say that since the bond was given the membership of the lodge has not only changed, but has increased; that the persons composing the lodge to whom the bond was given are not the same persons composing the lodge for whose benefit this suit is brought; and that by the increase of membership increased duties and responsibilities were placed upon the trustees; and that by reason of both these facts the sureties have been released from liability. As to these objections, it is sufficient to say that the very nature of an unincorporated association like a lodge of Odd Fellows presupposes a change from time to time, and a hoped for growth, in its membership. All that must have been in contemplation at the time the bond was given. It must have been contemplated that members would die or otherwise cease to be members, and that new members would be admitted. The bond was given for the security of the lodge, whoever might be its members for the time being, and although the personnel of the membership might be constantly changing. If a member dies, his interest lapses. So if he goes out of the lodge in any other way. New members coming in thereby obtain the same rights as the original members. The association protected by the bond remains a unit and unchanged, and those who are its members at any given time may enforce it.

3. The defendants further object that the bond was security for only one year, because the election in consequence of which it was given was for one year only. The constitution of the lodge requires annual elections. But by the terms of the bond itself it was to be in force so long as Harford held the office, whether by re-election or otherwise. Such a continuing bond is valid according to its terms. Amherst Bank v. Root, 2 Metc. 522; Middlesex Co. v. Lawrence, 1 Allen, 339; Railroad Co. v. Elwell, 8 Allen, 371. The obligors remain bound because, as was intimated by Chief Justice Shaw in Chelmsford v. Demarest, 7 Gray, 1, they had anticipated future elections, and provisionally bound themselves accordingly.

4. But the defendants contend that, in any event, it would be good only until there was an interruption in Harford's holding the office, and such is conceded to be the law. It is claimed that an interruption must be held to have occurred for the year 1897, because the records fail to show that a quorum was present at the election, and because they do show that Harford did not receive a majority of the votes; for the year 1893, because the records fail to show that there was a balloting; and for the year 1894, because there is no record or other proof that Harford was elected for that year. As to 1897, it was not necessary that the record should show the presence of a quorum. A quorum will be presumed to have been present unless the contrary appears. Citizens' Mut. Fire Ins. Co. v. Sortwell. 8 Allen, 217. The claim that Harford did not receive a majority of the ballots is based upon a misapprehension. Three trustees were balloted for, it seems, at once. The total number of ballots for all was 39. Harford had 13, Skinner 11, Spear 12, and Willard 3, making the total 39. Harford, Skinner, and Spear were properly declared elected. As to 1893 the record simply says that Harford and two others were declared elected. The details of the election are not given. We think...